Citizens Property Insurance Corporation, Appellant/Cross-Appellee,
Rosa Calonge, Appellee/Cross-Appellant, and Wilson Imbert and Judy Imbert, Lazaro Gomez Cruz and Judith Carreras Lopez, Francisco Granados and Daisy Granados, and Anthony Calvi, Appellees.
final until disposition of timely filed motion for rehearing.
Appeals from non-final orders from the Circuit Court for
Miami-Dade County Lower Tribunal Nos. 14-32096; 16-3469;
15-30091; 16-6056; 15-15114, Antonio Arzola, Migna
Sanchez-Llorens, and Monica Gordo, Judges.
& Rockenbach, P.A., and Kara Berard Rockenbach (West Palm
Beach), for appellant/cross-appellee.
Barnard Law Offices, L.P., and Andrew C. Barnard, for
ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
these five consolidated appeals, we review virtually
identical non-final orders that deny, without elaboration,
Appellant Citizens Property Insurance Corporation's
("Citizens") motions to dismiss
Appellees' claims. While Citizens's dismissal
motions assert its sovereign immunity from Appellees'
claims, we do not have jurisdiction to review the trial
courts' unelaborated non-final orders denying
Citizens's dismissal motions. Therefore, we dismiss each
of Citizens's appeals.
sought to dismiss various counts in Appellees'
complaints. Citizens argued that these counts, irrespective
of how they were couched, constitute disguised, first-party
bad faith claims for which Citizens enjoys sovereign immunity
under section 627.351(6)(s) of the Florida Statutes and the
case of Citizens Property Insurance Corp. v. Perdido Sun
Condominium Association, 164 So.3d 663 (Fla. 2015). The
trial courts adjudicated each such dismissal motion by
entering an unelaborated order that simply denied
Citizens's motion. Citizens appealed each of these
initial briefs to this Court, Citizens argues that the trial
court erred by denying its dismissal motions; and, because
Citizens's dismissal motions were premised upon sovereign
immunity claims, the non-final dismissal orders are subject
to interlocutory review. See Fla. R. App. P.
9.130(a)(3)(C)(xi). In their answer briefs to this Court,
Appellees each assert, among other things, that, because the
appealed interlocutory orders are unelaborated, the orders
lack the requisite determination to allow appellate review
under rule 9.130(a)(3)(C)(xi). We consolidated these appeals
because the threshold jurisdictional issue for each appeal is
the same: whether we have jurisdiction to review an
unelaborated non-final order denying Citizens's motion to
dismiss when the motion asserts entitlement to sovereign
appellate jurisdiction to review non-final orders is limited
to only those orders specifically scheduled in rule
9.130(a)(3). See Keck v. Eminisor, 104 So.3d 359,
363-64 (Fla. 2012). Citizens relies on rule
9.130(a)(3)(C)(xi) to vest this Court with jurisdiction to
hear the otherwise non-reviewable interlocutory orders. This
rule reads as follows: "Appeals to the district courts
of appeal of non-final orders are limited to those that . . .
determine . . . that, as a matter of law, a party is not
entitled to sovereign immunity."
order on appeal, the trial court states merely that
Citizens's motion to dismiss was denied. In none of these
orders did the trial court state as a basis for its denial
that Citizens was not entitled to the sovereign immunity
shield from suit. While the dissent assiduously argues to the
contrary, we are constrained by this Court's
jurisprudence and the text of the relevant rule to limit our
jurisdictional inquiry to the four corners of the appealed
order. Put another way, in making our jurisdictional
determination, we look only to the face of the trial
court's order and do not penetrate the record with a
searchlight to divine whether the trial court's
undisclosed rationale warrants appellate review.
Miami-Dade Cty. v. Pozos, 42 Fla.L.Weekly D418 (Fla.
3d DCA Feb. 15, 2017); Citizens Prop. Ins. Corp. v.
Sosa, 215 So.3d 90 (Fla. 3d DCA 2016).
This Court's Jurisprudence
Pozos, the plaintiff claimed that the County was
liable for personal injuries suffered after plaintiff was
shot at a County park. The County filed a summary judgment
motion asserting sovereign immunity, and the trial court
entered an unelaborated order denying the County's
motion. The County appealed this non-final order, arguing
that this Court had jurisdiction to review the trial
court's unelaborated order because the order impliedly
determined, as a matter of law, that the County was not
sovereignly immune from Pozos's claim. This Court
dismissed the County's appeal for lack of jurisdiction
because the trial court's order did not provide an
explicit determination on the availability of the immunity
defense, and because Florida's district courts are
"without authority to make the determination on our own
accord." Pozos, 42 Fla.L.Weekly D418.
Sosa, which bears some similarity to the instant
case, Citizens appealed a non-final order in which the trial
court denied Citizens' motion to strike certain bad faith
allegations and to dismiss and/or strike certain counts of
the complaint. On appeal, Citizens "characterize[ed] the
trial court's order as one determining that it is not
entitled to sovereign immunity as a matter of law . . .
." Sosa, 215 So.3d at 91. This Court dismissed
the appeal for lack of jurisdiction, again because the trial
court's order did not address sovereign immunity
Pozos and Sosa follow Florida Supreme Court
jurisprudence dictating that Florida's district courts do
not have jurisdiction to review a non-final order addressing
immunity unless the order specifically states that the
immunity defense is not available. Hastings v.
Demming, 694 So.2d 718, 720 (Fla. 1997). While
Hastings and its progeny involve workers'
compensation immunity rather than sovereign immunity, the
jurisdictional rules authorizing the interlocutory appeals of
orders relating to workers compensation immunity and
sovereign immunity are identical in their wording, and
therefore are analogous. Because the drafters of these two rules
chose to employ virtually identical language to define the
contours of our interlocutory jurisdiction in the immunity
context, we have no difficulty applying case law from
workers' compensation immunity jurisprudence to inform
our analysis of sovereign immunity jurisdiction. See
State v. Hearns, 961 So.2d 211, 217 (Fla. 2007)
("We have held that where the Legislature uses the exact
same words or phrases in two different statutes, we may
assume it intended the same meaning to apply.")
note that Hastings, Reeves and
Culver arose from summary judgment determinations,
yet the Florida Supreme Court has not distinguished between
an order on a motion for summary judgment and an order on a
motion to dismiss. Indeed, Reeves cites approvingly
to Martin Electronics, Inc., v. Glombowski, 705
So.2d 26, 30 (Fla. 1st DCA 1997), in which the First District
held that an unelaborated order deriving from a motion to
dismiss and making no specific immunity determination, was
not an appealable order. Reeves, 889 So.2d at 821.
Text of the Relevant Rule
reading of rule 9.130(a)(3)(C)(xi) - preventing interlocutory
review of an unelaborated order - is consistent with the text
of the rule, as well as the requirement that we are to
construe narrowly the categories of non-final orders subject
to interlocutory appeal. Walker v. Fla. Gas Transmission
Co., 134 So.3d 571, 572 (Fla. 1st DCA 2014). The
presence of the word "determine" in the rule is
significant. The "non-final order" must
"determine" that "a party is not entitled to
sovereign immunity." Thus, the plain text of the rule
requires that, for interlocutory review to be available, the
order itself must actually adjudicate the sovereign
immunity issue against the allegedly immune party. Nothing in
the rule suggests that we may adduce or surmise such a
determination by reviewing documents in the record apart from
the trial court's written order. Such a search for
jurisdiction within the record would lead to imprecise and
even presumptuous conclusions. To allow a district court to
make its jurisdictional determination by engaging in its own
examination of the underlying record essentially would allow
the district court to make the sovereign immunity
determination in the first instance. Surely, such a search
for jurisdiction would undermine the purpose of rule
9.130(a)(3) itself, which is to expressly circumscribe the
categories of non-final orders subject to interlocutory
review. Pozos, 42 Fla. Weekly D418.
trial courts' non-final orders below merely said:
"Denied." These orders did not determine, as a
matter of law, that Citizens is not entitled to sovereign
immunity. Therefore, we lack jurisdiction to review the
challenged orders under rule 9.130(a)(3)(C)(xi), and dismiss
the consolidated appeals.
SUAREZ, J., concurs.
ROTHENBERG, C.J. (dissenting).
these five consolidated appeals,  we are presented with two
questions: (1) whether we have appellate jurisdiction to
review non-final orders that deny, without elaboration,
motions to dismiss that only raise the issue of sovereign
immunity from suit; and (2) if we reach the merits, whether
the trial court erred by denying Citizens Property Insurance
Corporation's ("Citizens") motion to dismiss
the breach of contract and declaratory judgment claims pled
in the five separate complaints filed by the Appellees,
claims from which Citizens argues it is sovereignly immune
because they are statutory bad-faith claims. As will be
explained more fully below, I would answer both questions in
the affirmative, reverse the orders on appeal, and remand
with instructions to the trial courts to enter orders
granting Citizens' motions to dismiss without prejudice
to allow the Appellees to file amended complaints.
the Appellees allegedly sustained accidental property damage
to their real properties, they sued their insurer, Citizens,
alleging various causes of action. Although the procedural
history and the complaints in each of these five cases are
somewhat different, the common issue in these appeals is
whether the trial court erred by denying Citizens' motion
to dismiss the breach of contract and declaratory judgment
counts brought in each of the Appellees' complaints.
case, Citizens moved to dismiss the breach of contract and
declaratory judgment claims, arguing that these claims were
actually disguised claims for statutory bad-faith under
section 624.155(1), Florida Statutes (2014), for which
Citizens is entitled to sovereign immunity as a matter of
law. See Citizens Prop. Ins. Corp. v. Perdido Sun Condo.
Ass'n, 164 So.3d 663, 667 (Fla. 2015) (holding that
Citizens has sovereign immunity from suit regarding statutory
bad-faith claims). Although the trial court judges in these
five cases entered orders denying Citizens' motions to
dismiss the breach of contract and declaratory judgment
claims, they failed to elaborate as to their reasoning either
at the hearings on Citizens' motions or in the orders
they issued. Citizens timely appeals these non-final
orders denying its motions to dismiss pursuant to Florida
Rule of Appellate Procedure 9.130(a)(3)(C)(xi), which
provides that a party may appeal to the district court
non-final orders that "determine . . . that, as a matter
of law, a party is not entitled to sovereign immunity."
majority dismisses Citizens' appeals for lack of
jurisdiction based on its conclusion that the orders are not
appealable under rule 9.130(a)(3(C)(xi) because the trial
court's orders do not expressly state that as a
matter of law, Citizens is not entitled to sovereign
immunity. I respectfully submit that the majority's
interpretation of rule 9.130(a)(3)(C)(xi) is unsupported by
the plain language of the rule, the purpose of the rule, the
relevant case law, and common sense. I would therefore deny
each of the Appellees' motions to dismiss the appeals and
decide these appeals on the merits.
standard of review for the interpretation of procedural rules
is de novo. Strax Rejuvenation & Aesthetics Inst.,
Inc. v. Shield, 49 So.3d 741, 742 (Fla. 2010).
"Procedural rules should be given a construction
calculated to further justice, not to frustrate it."
Id. at 743 (quoting Singletary v. State,
322 So.2d 551, 555 (Fla. 1975)). "Our courts have long
recognized that the rules of construction applicable to
statutes also apply to the construction of rules."
Brown v. State, 715 So.2d 241, 243 (Fla. 1998).
The majority's interpretation is unsupported by the
text of the rule
majority correctly states, we are constrained by the text of
the rule. Rule 9.130(a)(3)(C)(xi) provides as follows:
"Appeals to the district courts of appeal of non-final
orders are limited to those that . . . determine . . . that,
as a matter of law, a party is not entitled to sovereign
immunity." This text does not contain any words limiting
the appeal of non-final orders to those orders that
expressly determine that a party is not entitled to
sovereign immunity. The word "determination, " from
which the word "determine" derives, simply means
"[t]he act of deciding something officially."
Determination, Black's Law Dictionary
(10th ed. 2014); see also Legally
Determined, Black's Law Dictionary (10th
ed. 2014) (defining "legally determined" as
"decided by legal process"); Charter Sch. USA,
Inc. v. John Doe No. 93, 152 So.3d 657, 661 (Fla. 3d DCA
2014) (concluding, in the context of analyzing Florida Rule
of Civil Procedure 1.550, that "'determined'
means the point in time when the trial judge, in this case
signed an order ruling on the school's post-trial
motions"). Indeed, if the word "determined"
somehow signified an express statement, then the phrase
"expressly determined" would be redundant. It is
therefore clear from the text of rule 9.130(a)(3)(C)(xi) that
a party's ability to appeal non-final orders under the
rule is not as limited as the majority has found. In fact, it
is only possible to reach the majority's conclusion if we
add language to the rule.
The majority's interpretation is in conflict with the
purpose of the rule
purpose behind amending rule 9.130 to include rule
9.130(a)(3)(C)(xi) was to give meaningful effect to sovereign
immunity from suit. This purpose would be arbitrarily
frustrated if only those orders expressly denying entitlement
to sovereign immunity were appealable. The Florida Supreme
Court has specifically noted the importance of providing
interlocutory review to parties who are entitled to sovereign
immunity from suit but were denied that right at the trial
court level. See Keck v. Eminisor, 104 So.3d 359,
360 (Fla. 2012).
Keck, when addressing whether interlocutory review
should be available to defendants to appeal non-final orders
denying motions for summary judgment based on a claim of
sovereign immunity under section 768.28(9)(a), Florida
Statutes (2005), the Florida Supreme Court stated the
[I]f a defendant who is entitled to the immunity granted in
section 768.28(9)(a) is erroneously named as a party
defendant and is required to stand trial, that individual has
effectively lost the right bestowed by statute to be
protected from even being named as a defendant. If
orders denying summary judgment based on claims of individual
immunity from being named as a defendant under section
768.28(9)(a) are not subject to interlocutory review, that
statutory protection becomes essentially meaningless for the
Id. at 366 (emphasis added). Thus, the Florida
Supreme Court recommended a change to the rules of appellate
procedure to allow for appeals "where an individual
defendant who claims immunity under 768.28(9)(a) is denied
that immunity and the issue turns on a matter of law."
Id. at 369. Specifically, the Court requested that
the Florida Bar Appellate Court Rules Committee consider
"whether the categories of non-final orders in rule
9.130(a)(3) should be expanded to include the denial of any
claim of immunity where the question presented is
solely a question of law." Id. at 370
(emphasis added). Upon recommendations from the Florida Bar
Appellate Court Rules Committee, the Florida Supreme Court
adopted rule 9.130(a)(3)(C)(xi), which now permits appeals
from non-final orders that determine that, as a matter of
law, a party is not entitled to sovereign immunity.
order for a party's entitlement to sovereign immunity
from suit to constitute an effective
protection, the party must have a meaningful ability to
assert its entitlement to sovereign immunity at the
very beginning of litigation. To hold that
the non-final order must expressly state that a party is not
entitled to sovereign immunity, where it is otherwise clear
that the trial court made such a determination, would
arbitrarily restrict a party's ability to appeal an
adverse ruling regarding its entitlement to sovereign
immunity from suit in circumstances where the trial court
merely issues an unelaborated order denying a motion to
dismiss that only raises the party's claim to sovereign
immunity from suit. To withhold an appellate remedy to a
party who is sovereignly immune from suit as a matter of law
until the case has been fully litigated, simply because the
trial court has failed or refused to issue an elaborated
order, is contrary to the very purpose and intent of the rule
The case law does not support the majority's
majority cites to two opinions issued by this Court in
support of its position that this Court lacks jurisdiction
over the trial court's unelaborated orders denying
Citizens' motions to dismiss: Citizens Property
Insurance Corp. v. Sosa, 215 So.3d 90 (Fla. 3d DCA
2016), and Miami-Dade County v. Pozos, 42
Fla.L.Weekly D418 (Fla. 3d DCA Feb. 5, 2017). Both cases are
easily distinguishable. Pozos is not yet final on
appeal, and the trial court specifically stated that it was
not ruling on sovereign immunity in Sosa. And, as
will be discussed below, the Florida Supreme Court has